Legal Lode: Well To-Do

Just in case anyone wonders why landfills need liners, a recent case from Virginia provides a nice illustration.

Claude and Virginia Royal own, operate and reside in the Twin Oaks mobile home park located some 45 miles east of Roanoke. The park, containing more than 200 lots and 450 residents, abuts a landfill, which has been owned and operated by Campbell County under a state permit since 1979. The 160-acre facility has three disposal areas: a capped and unlined Phase II, which was closed in 1995; an active Phase III; and Phase IV for future expansion. (State law did not require geomembrane liners when Phase II was constructed.) In the 1990s, the County installed state-mandated groundwater monitoring wells within Phase II, but, due to allegedly bad advice from its engineers, not until 2002 near the boundary the landfill shares with the park.

After detecting significant levels of waste constituents in Phase II downgradient wells in 1998, the County filed groundwater protection standards (GPS) with state environmental officials who approved them in 2001. Virginia solid waste management regulations allow GPS based on federal maximum contaminant levels (MCLs), state-approved, site-specific background concentration levels, or risk-based alternate concentration limits.

A year later, sampling at the wells revealed trichloroethene and vinyl chloride at levels significantly exceeding their respective GPS. These readings triggered corrective action by the County, including an exploratory study and the drilling of additional monitoring wells to address possible groundwater contamination migrating beyond the site. Samples later taken from these wells showed the presence of a number of volatile organic compounds (VOCs).

Data collected during the study revealed a two-pronged plume of chlorinated and aromatic hydrocarbons present in the uppermost aquifer beneath Phase II. One prong extended 2,000 feet into the Royals’ property. Data from some water supply wells located in the park showed contamination from the plume. “Evidence indicate[d] the source of the contaminants [was] both landfill gas and leachate from” Phase II and “that natural attenuation of the contaminants [was] occurring in the aquifer,” the study said.

In October 2002, the state issued a Notice of Violation to the County, faulting the landfill’s groundwater monitoring system for “ not ensur[ing] detection of groundwater contamination in the . . . aquifer at the . . . boundary [between the landfill and the park].” Subsequently, the County signed a consent order agreeing to develop and implement a corrective action program and to notify “all persons who own . . . or reside on land [above] the . . . contamination that [had] migrated beyond the [landfill’s] boundary.”

Not until almost a year later did the County inform Mr. Royal by letter about the contamination it had detected under the park. But, the letter only confirmed what the Royals already knew; they had drilled a monitoring well on their property in early 2002 and found small amounts of VOCs in the wells they had installed to serve park residents.

Inexplicably, the Royals waited three more years before filing suit against the County. Seeking an award of damages, they alleged that the landfill operations “contaminated . . . the drinking water . . . near the landfill and [in] the park” and released “harmful and toxic chemicals, hazardous substances and pollutants from . . . the landfill . . . negatively impact[ing] the air, groundwater and surface water on, within and under the park.”

Because the chlorinated hydrocarbons found in the groundwater fit the statutory definition of “oil,” the Royals charged the County with illegally discharging oil. They also claimed that their property had been “taken” without compensation in violation of the state constitution. For its part, the County flatly denied all the allegations.

Next month: Experts testify. The trial judge rules. But the Virginia Supreme Court has the final say.

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].